April 25, 2007, Introduced by Senators BASHAM, CLARK-COLEMAN, BRATER, ANDERSON, SCOTT, OLSHOVE, THOMAS, SCHAUER, JACOBS, CLARKE and SWITALSKI and referred to the Committee on Agriculture.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 3101, 3103, and 3112 (MCL 324.3101, 324.3103,
and 324.3112), section 3101 as amended by 2006 PA 97 and sections
3103 and 3112 as amended by 2005 PA 33, and by adding section
3112d.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3101. As used in this part:
(a) "Animal feeding operation" or "AFO" means that term as it
is defined in R 323.2102 of the Michigan administrative code on the
effective date of the amendatory act that added this subdivision.
(b) (a)
"Aquatic nuisance
species" means a nonindigenous
species that threatens the diversity or abundance of native species
or the ecological stability of infested waters, or commercial,
agricultural, aquacultural, or recreational activities dependent on
such waters.
(c) (b)
"Ballast water" means
water and associated solids
taken on board a vessel to control or maintain trim, draft,
stability, or stresses on the vessel, without regard to the manner
in which it is carried.
(d) (c)
"Ballast water treatment
method" means a method of
treating ballast water and sediments to remove or destroy living
biological organisms through 1 or more of the following:
(i) Filtration.
(ii) The application of biocides or ultraviolet light.
(iii) Thermal methods.
(iv) Other treatment techniques approved by the department.
(e) "Comprehensive nutrient management plan" or "CNMP" means a
comprehensive nutrient management plan as described in R 323.2196
of the Michigan administrative code on the effective date of the
amendatory act that added this subdivision.
(f) "Concentrated animal feeding operation" or "CAFO" means
that term as it is defined in R 323.2102 of the Michigan
administrative code on the effective date of the amendatory act
that added this subdivision.
(g) (d)
"Department" means the
department of environmental
quality.
(h) (e)
"Detroit
consumer price index" means the most
comprehensive index of consumer prices available for the Detroit
area from the United States department of labor, bureau of labor
statistics.
(i) (f)
"Emergency management
coordinator" means that term as
defined in section 2 of the emergency management act, 1976 PA 390,
MCL 30.402.
(j) (g)
"Great Lakes"
means the Great Lakes and their
connecting waters, including Lake St. Clair.
(k) (h)
"Group 1 facility" means
a facility whose discharge is
described by R 323.2218 of the Michigan administrative code.
(l) (i)
"Group 2 facility" means
a facility whose discharge is
described by R 323.2210(y), R 323.2215, or R 323.2216 of the
Michigan administrative code.
(m) (j)
"Group 3 facility" means
a facility whose discharge is
described by R 323.2211 or R 323.2213 of the Michigan
administrative code.
(n) (k)
"Local health department"
means that term as defined
in section 1105 of the public health code, 1978 PA 368, MCL
333.1105.
(o) (l) "Local
unit" means a county, city, village, or township
or an agency or instrumentality of any of these entities.
(p) (m)
"Municipality" means this
state, a county, city,
village, or township, or an agency or instrumentality of any of
these entities.
(q) (n)
"National response
center" means the national
communications center established under the clean water act, 33 USC
1251 to 1387, located in Washington, DC, that receives and relays
notice of oil discharge or releases of hazardous substances to
appropriate federal officials.
(r) (o)
"Nonoceangoing vessel"
means a vessel that is not an
oceangoing vessel.
(s) (p)
"Oceangoing vessel" means
a vessel that operates on
the Great Lakes or the St. Lawrence waterway after operating in
waters outside of the Great Lakes or the St. Lawrence waterway.
(t) (q)
"Open water disposal of contaminated
dredge materials"
means the placement of dredge materials contaminated with toxic
substances as defined in R 323.1205 of the Michigan administrative
code into the open waters of the waters of the state but does not
include the siting or use of a confined disposal facility
designated by the United States army corps of engineers or beach
nourishment activities utilizing uncontaminated materials.
(u) (r)
"Primary public safety
answering point" means that
term as defined in section 102 of the emergency telephone service
enabling act, 1986 PA 32, MCL 484.1102.
(v) (s)
"Sediments" means any
matter settled out of ballast
water within a vessel.
(w) (t)
"Sewage sludge" means
sewage sludge generated in the
treatment of domestic sewage, other than only septage or industrial
waste.
(x) (u)
"Sewage sludge
derivative" means a product for land
application derived from sewage sludge that does not include solid
waste or other waste regulated under this act.
(y) (v)
"Sewage sludge generator"
means a person who generates
sewage sludge that is applied to land.
(z) (w)
"Sewage sludge
distributor" means a person who
applies, markets, or distributes, except at retail, a sewage sludge
derivative.
(aa) (x)
"St. Lawrence waterway"
means the St. Lawrence river,
the St. Lawrence seaway, and the gulf of St. Lawrence.
(bb) (y)
"Threshold reporting
quantity" means that term as
defined in R 324.2002 of the Michigan administrative code.
(cc) (z)
"Waters of the state"
means groundwaters, lakes,
rivers, and streams and all other watercourses and waters,
including the Great Lakes, within the jurisdiction of this state.
Sec. 3103. (1) The department shall protect and conserve the
water resources of the state and shall have control of the
pollution of surface or underground waters of the state and the
Great Lakes, which are or may be affected by waste disposal of any
person. The department may make or cause to be made surveys,
studies, and investigations of the uses of waters of the state,
both surface and underground, and cooperate with other governments
and governmental units and agencies in making the surveys, studies,
and investigations. The department shall assist in an advisory
capacity a flood control district that may be authorized by the
legislature. The department, in the public interest, shall appear
and present evidence, reports, and other testimony during the
hearings involving the creation and organization of flood control
districts. The department shall advise and consult with the
legislature on the obligation of the state to participate in the
costs of construction and maintenance as provided for in the
official plans of a flood control district or intercounty drainage
district.
(2) The department shall enforce this part and may promulgate
rules as it considers necessary to carry out its duties under this
part. However, notwithstanding any rule-promulgation authority that
is provided in this part, except for rules authorized under section
3112(6), the department shall not promulgate any additional rules
under this part after December 31, 2006.
(3) The department may promulgate rules and take other actions
as may be necessary to comply with the federal water pollution
control act, 33 USC 1251 to 1387, and to expend funds available
under such law for extension or improvement of the state or
interstate program for prevention and control of water pollution.
This part shall not be construed as authorizing the department to
expend or to incur any obligation to expend any state funds for
such purpose in excess of any amount that is appropriated by the
legislature.
(4) Notwithstanding the limitations on rule promulgation under
subsection (2), rules promulgated under this part before January 1,
2007 shall remain in effect unless rescinded.
(5) If the department identifies a violation of this part by a
CAFO that may adversely affect public health, the department shall
notify the department of community health. The department shall
coordinate CAFO investigations, enforcement actions, and community
notifications to ensure compliance with this part and the
protection of public health.
Sec. 3112. (1) A person shall not discharge any waste or waste
effluent into the waters of this state unless the person is in
possession of a valid permit from the department.
(2) An application for a permit under subsection (1) shall be
submitted to the department. Within 30 days after an application
for a new or increased use is received, the department shall
determine whether the application is administratively complete.
Within 90 days after an application for reissuance of a permit is
received, the department shall determine whether the application is
administratively complete. If the department determines that an
application is not complete, the department shall notify the
applicant in writing within the applicable time period. If the
department does not make a determination as to whether the
application is complete within the applicable time period, the
application shall be considered to be complete.
(3) The department shall condition the continued validity of a
permit upon the permittee's meeting the effluent requirements that
the department considers necessary to prevent unlawful pollution by
the dates that the department considers to be reasonable and
necessary and to assure compliance with applicable federal law and
regulations. If the department finds that the terms of a permit
have been, are being, or may be violated, it may modify, suspend,
or revoke the permit or grant the permittee a reasonable period of
time in which to comply with the permit. The department may reissue
a revoked permit upon a showing satisfactory to the department that
the permittee has corrected the violation. A person who has had a
permit revoked may apply for a new permit.
(4) If the department determines that a person is causing or
is about to cause unlawful pollution of the waters of this state,
the department may notify the alleged offender of its determination
and enter an order requiring the person to abate the pollution or
may refer the matter to the attorney general for legal action, or
both.
(5) A person who is aggrieved by an order of abatement of the
department or by the reissuance, modification, suspension, or
revocation of an existing permit of the department executed
pursuant to this section may file a sworn petition with the
department setting forth the grounds and reasons for the complaint
and asking for a contested case hearing on the matter pursuant to
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to 24.328. A petition filed more than 60 days after action on the
order or permit may be rejected by the department as being
untimely.
(6) Beginning January 1, 2007, all oceangoing vessels engaging
in port operations in this state shall obtain a permit from the
department. The department shall issue a permit for an oceangoing
vessel only if the applicant can demonstrate that the oceangoing
vessel will not discharge aquatic nuisance species or if the
oceangoing vessel discharges ballast water or other waste or waste
effluent, that the operator of the vessel will utilize
environmentally sound technology and methods, as determined by the
department, that can be used to prevent the discharge of aquatic
nuisance species. The department shall cooperate to the fullest
extent practical with other Great Lakes basin states, the Canadian
Great Lakes provinces, the Great Lakes panel on aquatic nuisance
species, the Great Lakes fishery commission, the international
joint commission, and the Great Lakes commission to ensure
development of standards for the control of aquatic nuisance
species that are broadly protective of the waters of the state and
other natural resources. Permit fees for permits under this
subsection shall be assessed as provided in section 3120. The
permit fees for an individual permit issued under this subsection
shall be the fees specified in section 3120(1)(a) and (5)(a). The
permit fees for a general permit issued under this subsection shall
be the fees specified in section 3120(1)(c) and (5)(b)(i). Permits
under this subsection shall be issued in accordance with the
timelines provided in section 3120. The department may promulgate
rules to implement this subsection.
(7) A person shall not operate a CAFO in this state unless the
CAFO has been issued a permit under this part. Notwithstanding any
other provision of this part, until January 1, 2012, the department
shall not issue a permit for or otherwise authorize the operation
of a CAFO that was not in existence prior to April 25, 2007.
However, the department may reissue a permit to a CAFO that has
previously received a permit under this part as long as the
reissued permit does not allow an increase in the number of animals
at the CAFO.
(8) Notwithstanding any other provision of this part, the
department shall not issue a permit for or otherwise authorize the
construction or operation of a new waste storage facility at an AFO
that has the capacity to hold 500,000 or more gallons.
Additionally, the department shall not issue a permit or otherwise
authorize the expansion of a waste storage facility at an AFO that
has the capacity to hold or will, following the expansion, have the
capacity to hold 500,000 or more gallons. This subsection does not
prohibit the repair or maintenance of a waste storage facility.
(9) The owner or operator of a CAFO shall not transfer the
permit for that CAFO to a person who has been determined by a court
to have violated this part with respect to operations at a CAFO.
Sec. 3112d. (1) Within 2 years after the effective date of the
amendatory act that added this section, the department, in
consultation with the department of agriculture, shall prepare and
submit to each member of the legislature a report that includes all
of the following information:
(a) The number of CAFOs that have received a permit under this
part.
(b) The number of AFOs that have applied for a permit under
this part.
(c) The number of CAFOs that have not applied for a permit
under this part.
(d) A summary of the department's inspection protocol and a
schedule for inspecting CAFOs.
(e) The number of AFOs that are larger than 50% of the minimum
size of a CAFO in terms of the number of animals at the AFO.
(f) For each existing CAFO, all of the following:
(i) The location of the CAFO and the watershed and
subwatersheds in which the CAFO is located.
(ii) Whether there are existing watershed impairments in the
watershed in which the CAFO is located.
(iii) The proximity of the CAFO to drinking water wells or
sensitive natural areas.
(iv) The type of permit issued to the CAFO under this part and
the total permit fee paid.
(v) The number and species of animals at the CAFO.
(vi) The number, type, and capacity of waste storage facilities
at the CAFO, including all of the following with regard to each
waste storage facility:
(A) The location of the waste storage facility.
(B) A description of the liner utilized.
(C) The depth to groundwater at the location of the waste
storage facility.
(D) The depth of the waste storage facility.
(E) Whether the waste storage facility meets NRCS standard
313, dated June 2003.
(F) The results of any groundwater tests conducted in the
vicinity of the waste storage facility within the last year.
(G) The results of any soil boring tests conducted in the
vicinity of the waste storage facility.
(H) The results of other tests for waste storage facility
integrity.
(I) A calculation of the expected rate of leakage from each
waste storage facility structure, in gallons.
(vii) A description of any CAFO waste treatment systems in
operation at the CAFO.
(viii) The number of acres of land under control of the CAFO
operator for field application of CAFO wastes.
(ix) A summary of groundwater and surface water tests conducted
by the department, the department of agriculture, a local health
department, or any other person at the CAFO.
(x) The status of compliance with a permit requirement for
submitting and updating a CNMP.
(xi) A map of land application areas that are included in more
than 1 CNMP.
(xii) A summary of violations, convictions, court judgments,
and fines or other remedies assessed against the CAFO, if any.
(xiii) The number of complaints made against the CAFO to the
department or the department of agriculture.
(xiv) The results of any air quality tests conducted in the
vicinity of a CAFO.
(g) An approximate budget available to the department for
monitoring and enforcement of CAFOs statewide.
(h) The number of FTEs assigned for monitoring and enforcement
of CAFOs in each departmental district.
(i) An estimated number of hours required to process each CAFO
permit under this part.
(j) An estimated cost of processing each CAFO permit,
including, but not limited to, public notification, hearings, and
inspections.
(k) The number of FTEs assigned to process CAFO permits under
this part.
(l) A summary of the department's protocol for responding to
the breach of a waste storage facility or other major waste
discharge from a CAFO. The protocol shall include, but not be
limited to, all of the following:
(i) Estimated response time.
(ii) Containment of the discharge.
(iii) Community notification.
(iv) Remediation.
(m) A summary of the department's protocol for responding to
air quality emergencies at a CAFO, including, but not limited to,
high levels of hydrogen sulfide, methane, or ammonia. The protocol
shall include, but not be limited to, all of the following:
(i) Estimated response time.
(ii) Community notification.
(iii) Evacuation.
(iv) Remediation.
(n) For each CAFO, a summary of the CAFO's CNMP that is on
file with the department and whether the CAFO has received a permit
under this part.
(2) The department shall post the report prepared under this
section on the department's website and shall make copies of the
report available to the general public upon request free of charge.